Opinion
C/A No. 2:16-cv-1212-RMG-MGB
07-27-2017
WILLIAM ANTHONY HEMBY, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This case is before the court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). The Plaintiff, William Anthony Hemby, brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act. For the reasons stated herein, the undersigned recommends that the Commissioner's findings be reversed and remanded for a new hearing.
ADMINISTRATIVE PROCEEDINGS
The Plaintiff applied for DIB on September 10, 2012, and was 55 years old on his alleged disability onset date of February 9, 2011. (R. 170.) The Plaintiff claimed disability due to cervical stenosis of spinal cord, osteoarthritis; chronic bilateral shoulder osteoarthritis; torn rotator cuff right shoulder with cysts between tendon; osteoarthritis in both hips; two torn labrum in left hip; torn cartilage in right knee; osteoarthritis in right knee, degenerative joint disease for thoracic spine, polyarthralgia chronic mononeurapathy of left musculocutan; bilateral media neuropathies at the wrist/carpal tunnel; diabetes; hemochromatosis; high white count; hyperkalemia; hyperlipidemia; metabolic syndrome; cervical spasms; myfascitis of the spine included with thoracic outlet syndrome; ophthalmoplegic migraine headaches due to cervical surgeries; and trouble swallowing. (R. 57-58.) The Plaintiff's application for DIB was denied initially and on reconsideration. (R. 69, 84.) The Plaintiff requested a hearing, which was held on October 2, 2014, before an Administrative Law Judge ("ALJ"). The ALJ issued his decision on January 22, 2015, and it is now the Commissioner's final decision for purposes of judicial review. (R. 12-23.) The Plaintiff filed an appeal to the Appeals Council which was denied review. (R. 1-6.) In making the determination that the Plaintiff was not entitled to benefits, the Commissioner adopted the following findings of the ALJ:
(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2012.
(2) The claimant has not engaged in substantial gainful activity during the period from his amended alleged onset date of February 9, 2011, through his date last insured of December 31, 2012. (20 CFR 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe impairments: status-post cervical discectomy with fusion at C3-C4 and C6-C7, secondary to degenerative disc disease; status-post arthroscopic surgery to bilateral shoulders, secondary to degenerative joint disease; status-post arthroscopic surgery to left hip, secondary to degenerative disc disease; and status-post arthroscopic surgery to right knee (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except that he was limited to occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; occasional balancing or stooping; no kneeling, crouching, or crawling; occasional overhead reaching bilaterally; and he had to avoid concentrated exposure to machinery and heights.(R. 17-23.)
(6) Through the date last insured, the claimant was capable of performing past relevant work as a security chief. As generally performed, this work does not require the performance of work-related activities precluded by the claimant's residual functional capacity. (20 CFR 404.1565).
(7) The claimant was not been under a disability, as defined in the Social Security Act, through December 31, 2012, the date last insured (20 CFR 404.1520(f)).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). "Disability" is defined in the Act as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 4, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5). He must make a prima facie showing of disability by showing that he is unable to return to her past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the regional economy. See Grant, 699 F.2d at 191. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. See id. at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971); 42 U.S.C. § 405(g). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted). Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that her conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
DISCUSSION
The Plaintiff asserts the ALJ erred in the following four ways:
1. The ALJ erred by failing to address the Plaintiff's Department of Veterans Affairs disability finding as prescribed by Bird v. Comm'r., 699 F>3d 337 (4th Cir. 2012).(Dkt. No. 12.)
2. The ALJ erred in concluding the Plaintiff's migraine headaches were not a severe impairment.
3. The ALJ erred in concluding the Plaintiff's carpal tunnel syndrome was not a severe impairment.
4. The ALJ erred in finding the Plaintiff not fully credible with respect to the frequency of migraine headaches, grasping and handling limitations, and concentration limitations associated with pain and pain management.
ALJ's Consideration of VA Disability Finding
The Plaintiff argues that the ALJ failed to properly weight the Department of Veterans Affairs' ("VA") finding that the Plaintiff was 70 percent disabled. (Dkt. No. 12 at 8-9.) In 1994, the VA found that the Plaintiff was 30 percent disabled by ophthalmoplegic migraine headaches. (R. 224-25.) In 2012, the Plaintiff was found by the VA to be 70 percent disabled of which 30 percent was attributable to the Plaintiff's migraine headaches. (R. 385.)
While a VA disability determination is not binding on the Commissioner, as a starting point the Administration must give substantial weight to a VA disability rating. See Robinson v. Colvin, No. 6:15-cv-1786-TMC-KFM, 2016 WL 3617971, at *9-11 (D.S.C. June 11, 2016), Report and Recommendation adopted by 2016 WL 3595564 (July 5, 2016). The ALJ should sufficiently explain the consideration given to a VA disability decision. Id.; Bird v. Comm'r, 699 F.3d 337, 343-44 (4th Cir. Nov. 9, 2012) ("SSA must give substantial weight to a VA disability rating"); see also SSR 06-03P, 2006 WL 2329939, at * 7(SSA) (ALJ "should explain the consideration given to [the VA disability determination] in notice of decision ..."). Under Bird, the Commissioner may give less weight to a VA disability rating when the record before the ALJ "clearly demonstrates" that such a deviation from a finding of substantial weight is appropriate. See Bird, 699 F.3d at 344; see also Robinson v. Colvin, No. 6:15-cv-1786-TMC-KFM, 2016 WL 3617971, at *9-11 (D.S.C. June 11, 2016) Report and Recommendation adopted by 2016 WL 3595564 (July 5, 2016) (where the ALJ did not discuss in any detail why or how he assigned weight to the VA rating decision, remanded for the ALJ to follow the method prescribed in Bird); Gannon v. Colvin, No. 9:15-cv-3250-RMG-BM, 2016 WL 5339698, at*6-7 (D.S.C. Aug. 22, 2016) Report and Recommendation adopted by 2016 WL 5338504 (Sept. 21, 2016) (the ALJ's minimal discussion of the VA rating was not sufficient to clearly demonstrate that a deviation from a finding of substantial weight was appropriate, and remanded for a more proper weighing pursuant to the methodology outlined in Bird); Wood v. Colvin, No. 9:12-cv-3570-MGL, 2014 WL 607707, at *4 (D.S.C. Feb. 18, 2014) (remanding the case so the ALJ could properly discuss the VA disability rating and whether deviation was appropriate under the standard in Bird); Cobbs v. Colvin, No. 1:12-cv-3472-JMC-SVH, 2014 WL 468928, at *8-9 (D.S.C. Feb. 4, 2014) (remanding for evaluation of the VA ratings in accordance with the Bird standard).
In the case at bar, the ALJ committed the following paragraph to discussing the VA disability rating:
The claimant submitted a disability rating from the Department of Veterans Affairs (VA) stating he had a service-connected disability rating of seventy percent (Ex. 12E and 4F/37). The undersigned gives little weight to this opinion for several reasons. First the VA disability rating incorporates the concept of "unemployability," which cannot be assigned to application for disability under the Social Security Act because it uses a different standard. Thus there is no direct link between the VA rating system and the residual functional capacity determinations made by the Social Security Administration. Further, the Regulations recognize that a decision by a non-governmental or any other governmental agency whether an individual is disabled or not is based on its own rules and is not binding on the Social Security Administration, which must make a disability determination based on Social Security law (20 CFR 404.1504). Yet, because all evidence that may have a bearing on such a determination must be considered, the undersigned has considered the rating in accordance with 20 CFR 404.1512(b)(5) an SSR 06-03p. Evidence from the VA medical records does not support a finding of disability. For example, these records report the claimant had "excellent" mobility and minimal pain following his ACDF surgeries (Ex. 4F/89). For residual shoulder pain, the VA physician recommended conservative treatment of over-the-counter NSAIDs and at-home physical therapy exercises (Ex. 4F/78). Likewise, following complaints of knee pain, x-rays from the VA found only normal bilateral knees, and physical examination revealed crepitus only in his left knee and no other findings reported (Ex. 4F/17, 99, 101). Finally, the rating gives no reference to specific work related activities, functional limitations, or specific symptoms, signs, or medical findings to support the designated rating. For these reasons, little weight is assigned this opinion.(R. 21.)
This court concludes that the ALJ failed to comply with Bird and is unable to determine if the little weight given to the VA disability determination was supported by substantial evidence. There is no indication at all that the ALJ's analysis started from an assumption that the VA rating decision was entitled to "substantial weight." Bird, 699 F.3d at 343. The ALJ instead noted that determinations made by other agencies are "not binding on the Social Security Administration, which must make a disability determination based on Social Security law (20 CFR 404.1504)." This is contrary to the holding in Bird. See Hildreth v. Colvin, No. 1:14CV660, 2015 WL 5577430, at *3 (M.D.N.C. Sept. 22, 2015) (holding that "the ALJ's statement that she was 'not bound by' the VA's disability ratings because the VA's disability standards differed from those of the Social Security Administration... disregards Bird's holding to the contrary.") The ALJ's Decision appears to only consider the VA rating "because all evidence that may have a bearing on such a determination must be considered, the undersigned has considered the rating in accordance with 20 CFR 404.1512(b)(5) an SSR 06-03p." This language does not reflect the substantial weight that is that the starting point in Bird.
The ALJ stated "there is no direct link between the VA rating system and the residual functional capacity determinations made by the Social Security Administration." (R. 21.) To the contrary, Bird held,
Like the VA, the SSA was required to undertake a comprehensive evaluation of [a claimant's] medical condition. Because the purpose and evaluation methodology of both programs are closely related, a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency.Bird, 699 F.3d at 343 (4th Cir. 2012).
The remainder of the ALJ's discussion of the VA rating points to a few specific parts of the Plaintiff's VA medical records. The ALJ never mentions migraines in the discussion of the VA rating. This is despite the fact that the highest rated disability by the VA was migraines, accounting for almost half of the VA's disability rating. (R. 385.) This court concludes that the ALJ's analysis of the Plaintiff's VA disability rating does not meet the requirements set forth in Bird. Additionally, this court cannot determine if the weight given by the ALJ is supported by substantial evidence because he did not address the primary disability that the VA found. Therefore, the undersigned recommends that the Commissioner's findings be reversed and remanded for a new hearing.
ALJ's Determination of Severe Impairments
The court finds that consideration of the VA disability rating may render the remainder of the Plaintiff's issues moot on remand. Thus, the court need not address these remaining issues. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). However, the court does note the Plaintiff's argument that the ALJ erred in concluding the Plaintiff's migraine headaches were not a severe impairment.
At Step Two of the sequential evaluation process, the ALJ "consider[s] the medical severity of [a claimant's] impairment(s)." 20 C.F.R. § 416.920(a)(4)(ii). The regulations define a "non-severe impairment" as "[a]n impairment or combination of impairments...[that] does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 416.922(a). "Basic work activities" means "the abilities and aptitudes necessary to do most jobs," and some examples include:
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and20 C.F.R. § 416.922(b). In Evans v. Heckler, 734 F.2d 1012 (4th Cir. 1984), the Fourth Circuit stated, "An impairment can be considered as 'not severe' only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Evans, 734 F.2d at 1014 (emphasis in original) (citations omitted).
(6) Dealing with changes in a routine work setting.
The test set forth in Evans is not a high bar to establish. Given the Plaintiff's VA rating found him 30 percent disabled based on migraines alone and that migraines were his most disabling condition, this court is concerned that the ALJ did not find the migraines had any more than a minimal effect on the Plaintiff.
Even if an ALJ is found to have erred at step two in concluding an impairment is not severe, the error is generally considered harmless if the ALJ considers that impairment at subsequent steps. See Sawyer v. Colvin, 995 F. Supp. 2d 496, 509 (D.S.C. 2014); Brown v. Astrue, Civ. A. No. 0:10-cv-01584-RBH, 2012 WL 3716792, at * 6 (D.S.C. Aug. 28, 2012) ("[T]he adequacy requirement of Walker is met if it is clear from the decision as a whole that the Commissioner considered the combined effect of a claimant's impairments."). In the case at bar, the ALJ did not discuss the Plaintiff's migraines in the RFC analysis at all. --------
RECOMMENDATION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED. July 27, 2017 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE